' This second appeal arising from a suit for possession filed by Syed Muhammad Baqir deceased is directed against the judgment and decree, dated 30-10-1982 passed by the learned Addl. District Judge, Lahore, whereby the appeal filed by the plaintiff against the judgment and decree, dated 20-9-1980 passed by the learned trial Court through which his said suit was dismissed, has been accepted and the suit decreed.
2. Syed Muhammad Baqir deceased predecessor-in-interest of respondents Nos.1 to 9 filed a suit for possession of land measuring 105 Kanals being 3/4th share of the land in dispute allotted to Mst. Hamid-un-Nisa in lieu of land owned by Syed Muhammad Hanif deceased, in village Sadhora, Tehsil Narain Garh, District Ambala. The case of the plaintiff was that Syed Muhammad Hanif was his paternal-uncle who was owner of the land in India and died issueless in the year 1938 and his ancestral property was mutated as a life estate under custom in the name of his widow Mst.
Hamid-un-Nisa. It was also pleaded in the plaint that she also succeeded to his ancestral house and other ancesteral as well as non-ancestral immovable and movable property including household effects and about Rs.1,000 in the post office Saving Bank at village Sadhora Branch Office of the Post Office. It was alleged that on 23-12-1941 said Mst. Hamid-un-Nisa brought a civil suit relating to her dower money amounting to Rs.1,500 against the plaintiff in the Court of Senior Civil Judge, Ambala which was decided on the basis of compromise the terms of which were as under:-
(i) That Mst. Hamid-un-Nisa will retain her lien for payment of Haq Mehr of Rs.1,500 on the shop in dispute and on the agricultural land situated in village Sadhora in dispute;
(ii) That Mst. Hamid-un-Nisa will get 1/4th share in non-agricultural land and in the house left by her husband and in the agricultural land left by Muhammad Hanif, she will get the life estate;
(iii) That Mst. Hamid-un-Nisa will be entitled to alienate her lien relating to Rs.1,500.
(iv) That she will be entitled to 1/4th share in the amount which is in the Saving Bank Account and 3/4th thereof shall go to the predecessor-in interest of respondents Nos.1 to 9;
(v) That Mst. Hamid-un-Nisa shall be entitled to live in the house in which she was residing but she will not be entitled to alienate more than 1/4th and if she wanted to rent out the residential house she would not be entitled to the rent in excess of 1/4th share.
(vi) It was alleged that on the basis of this compromise a consent decree was passed by the Senior Civil Judge, Ambala on 29-1-1943. On, migration to Pakistan Mst. Hamid-un-Nisa in her capacity as widow of Syed Muhammad Hanif and a limited owner got claim with regard to the property abandoned in Ambala confirmed and obtained the allotment of land in dispute from the Rehabilitation Authorities.
3. Mst. Hamid-un-Nisa through gift deed, dated 20-12-1960 gifted her 1/4th share in the above property in Chung Punjgarain in favour of defendant/present appellant who was her brother's son in which she admitted that she was holder of life estate in the property under the decree dated 29- 1-1943 of the Senior Civil Judge, Ambala and the present appellant by means of collusion with the Revenue staff got the entire land mutated by way of gift in his name. Similarly, by another gift-deed dated 27-12-1960 Mst. Hamid-un-Nisa made a gift of her 1/4th share in the allotted agricultural land in village Gaju Matta, Tehsil and District Lahore, wherein she also described herself as holder of life estate under the decree, dated 29-1-1943 of the Senior Civil Judge, Ambala but the defendant/present appellant by fraud and collusion got the entire land mutated in his name by way of gift. He went on stating in the plaint that Mst. Hamid-un-Nisa died on August 20, 1961 and on the termination of her life estate 3/4th share of the property in dispute vested in the plaintiff as nephew of last full owner of Syed Muhammad Hanif while the remaining 1/4th share went to Mst.
Hamid-un-Nisa which only could vest in the present appellant. According to the plaintiff the gifts which were made of the life estate only terminated and became void and ineffective on 20-8-1961 i.e. the date of death of Mst. Hamid-un-Nisa.
4. The suit was contested by the appellant whereas the other defendants who later on were transposed as co-plaintiffs supported the suit. The appellant raised a preliminary objection that the plaint was not properly presented. This objection was based on the ground that the plaint bad not been signed or presented by the plaintiff or his duly authorised agent. On merits it was stated that the land in dispute which Mst. Hamid-un-Nisa gifted through two impugned gift deeds was exclusively owned by her and the present appellant had become onwer of the same. The controversies arising from the pleadings of the parties were reflected in the following issues framed by the learned trial Court:-
(1) Whether the two powers of attorney filed `pendente lite' are genuine documents?
(2) If Issue No.1 is not proved, whether this suit is properly instituted?
(3) Whether the suit is not competent?
(4) Whether the parties were and continued to be governed under custom in the matter of succession and alienation of property at the time of the death of Mst. Hamid-un-Nisa? If so, to what effect?
(5) If Issue No.4 is proved, whether Mst. Hamid-un-Nisa deceased held her estate in India prior to partition as a full owner?
(6) Whether some decree was passed between deceased Mst. Hamid-un Nisa and the plaintiff about the property left by the husband of deceased Hamid-un-Nisa by the Senior Civil Judge, Ambala? If so, to what effect?
(7) Whether mutation in respect of land in dispute was not effected in accordance with the terms of alleged gift deed? If so, to what extent and with what consequence?
(8) Whether Mst. Hamid-un-Nisa got this suit property in lieu of the original claim of her deceased husband? If so, whether she could not validly gift the property?
(9) Whether the plaintiff is and has a right to succeed to the estate of deceased Mst. Hamid-un- Nisa?
(9-A) Whether the suit is barred by time?
(9-B) Whether the plaintiffs are the consanguine brothers of late Mst. Hamid-un-Nisa? If so, to what effect?
(10) Whether Mst. Hamid-un-Nisa was a limited owner, at the time of her demise, of the property in suit?
(11) Relief.
' It may be mentioned that during the pendency of the suit the original plaintiff Syed Muhammad Baqir died and his legal representatives were brought on record as plaintiffs Nos.1 to 9/respondents Nos.1 to 9.
5. In support of his case Syed Muhammad Baqir original plaintiff examined himself as his own witness as P.W.1, Sher Din Khan s/o Muhammad Yailoob Khan was examined as P.W.2, Syed Zahid Hussain s/o Syed Muhammad Baqir was examined as P.W.3 whereas Syed Zahoor-ul-Haq the alleged attorney examined himself as his own witness as P.W.4. The documentary evidence of the plaintiff consists of two power of attorneys Exh.P.1 and Exh.P.2, certified copy of statement of Syed Muhammad Baqir plaintiff made in the suit titled "Mst. Hamid-un-Nisa v. Muhammad Baqir" before the Senior Sub-Judge Ambala on 29-1-1943 Exh.P.3. It is clear that the learned counsel for the plaintiff in his statement made on 7-5-1966 stated that he was closing the affirmative evidence of the plaintiff and the plaintiff did not think it proper to exercise his right to produce evidence in rebuttal after the close of evidence of defendant No.1/appellant.
6. In rebuttal the appellant in support of his case examined Syed Mazhar Hussain as D.W.1, Muhammad Younas Patwari as D.W.2, Mr. MAA. Nomani, Handwriting Expert as D.W. 3 and the appellant examined himself as his own witness as D.W.4. The documentary evidence of the appellant consists of Exh.D.1 which is general power of attorney executed by Mst. Hamid-ud Nisa in favour of her husband Syed Ma7har Hussain, certified copies of Fard Haqiat, Exh.D.2 to Exh.D.7, report of expert witness Exh D 8 alongwith photostat copies of the documents examined by him from Exh.D.9 to Exh.D.13, the impugned gift deeds Exh.D.14 and Exh.D15, an order passed by the Member, Board of Revenue in revision petition Exh.D.16 and copy of special Jamabandi Exh.D.17.
7. Defendants Nos.2 and 6 who were supporting the case of the plaintiff examined Sikandar All as D.W3, Syed Hassan as D.W.6, Mehdi Hassan examined himself as his own witness as D.W.7. The learned trial Court after careful and elaborate appraisal of evidence under Issues Nos.1 and 2 held that power of attorneys Exh.P.1 and Exh.P.2 were not genuine documents and Syed Zahoor-ul-Haq the alleged attorney who was the signatory of the plaint at the time of presentation of the same had no genuine authority to sign the same and both Exhs.P.1 and P.2 had been prepared subsequently. Under Issue No3 it was held that the "Civil Court in Pakistan was vested with jurisdiction to entertain and decide the suit. This issue was answered in favour of the plaintiff. Under Issues Nos.4 and 5 it was held that it was established that the parties were not governed by custom in the matter of succession and alienation of property and it was further established that Mst.
Hamid-un-Nisa had the estate in India prior to partition as full owner. Issue No.4 was answered in the negative in favour of the defendant and agaidst the plaintiff whereas Issue No.5 was answered in affirmative in favour of defendant No.1/appellant. Issue No.6 was answered in the negative i.e. in favour of the defendants/appellant and against the plaintiff. Regarding Issue No.7 the learned trial Court observed that the same was not pressed by the learned counsel for the parties during arguments. It was remarked that the same did not arise out of the pleadings of the parties and no purpose could be obtained in deciding it, as such, it was answered in the negative. Issues Nos.8 and 10 were answered in the negative in the light of the discussion and the findings recorded under Issues Nos.4 and 5. Issue No.9 was decided against the plaintiff. Issues Nos.9-A and 9-B were answered in favour of the defendants/appellant as according to the learned trial Court no material evidence on these issues was available on the record. In the light of the above-mentioned findings recorded under various issues the learned trial Court through judgment dated 20-9-1980 dismissed the suit.
8. The plaintiff filed appeal in the Court of learned District Judge, Lahore, which has been accepted by the learned Addl. District Judge through impugned order dated 30-10-1982. It has been held that the failure of the plaintiff to put his signatures on the plaint was mere an irregularity which defect could be rectified and the plaintiff Syed Muhammad Baqir having appeared as witness and supported the suit, as such, the said defect stood cured.
9. Regarding the right of Mst. Hamid-un-Nisa qua the land it was held that as per her own admissions in Exhs.D.14 and D.15 the two gift deeds that she was entitled only to the extent of 1/4th share in the land left by Muhammad Hanif her husband on the basis of a decree passed by the Civil Court in India, it was established that the gift made by her of the land in dispute was effective only to the extent of 1/4th share which she inherited from Muhammad Hanif her husband as his issueless widow whereas 3/4th share of the land vests in the other heir of Syed Muhammad Hanif i.e. Syed Muhammad Baqir predecessor-in-interest of respondents Nos.1 to 9. It was held that the said admissioris made by Mst. Hamid-un-Nisa in these two gift-deeds were binding on her and the suit was liable to be decreed merely on the basis of the same. This judgment and decree has been assailed by the appellants in this second appeal.
10. The question whether non-signing of plaint by the plaintiff or his authorised agent is merely an irregularity or a defect of substantial nature having material bearing upon the presentation of plaint and institution of suit depends upon the facts and circumstances of each case. In this case the case of Syed Zahoor-ul-Haq the alleged attorney of the plaintiff when he examined himself as D.W.4 was that the original power of attorneys allegedly executed by the plaintiff were in his possession on the date when he filed the suit. It is manifest that his case was that on the date when he signed the plaint and instituted the suit he was exercising power to do so derivable from these power of attorneys. Exhs.P.1 and P.2 show that they were ostensibly executed by Syed Muhammad Baqir on 5-3-1964. The suit was filed on 14-44964. Surprisingly these documents do not show as to who was the scribe. There is nothing in the evidence produced by the plaintiff as to who scribed these documents. Sher Din Khan P.W.2 is the Stamp Vendor who stated that the stamp papers on which these power of attorneys had been written were sold by him which were entered in the relevant register which he had brought with him at Serial Nos.201 and 202. It may be observed that the said register was summoned by this Court which is available. He was given suggestion that the entries against Serial Nos.201 and 202 were over written and the original entries were replaced by fresh entries. P.W.3 Syed Zahid Hussain stated that he attested these documents as Magistrate. He is the son of Syed Muhammad Baqir the plaintiff whereas P.W. 4 Syed Zahoor-ul-Haq the alleged attorney is his other son. It is clear that so far as evidence of P.W.3 and P.W.4 is concerned the same has been rightly held to be the evidence of highly interested witnesses by the learned trial Court.
These power of attorneys which were allegedly executed before the filing of the suit and were allegedly in possession of Syed Zahoor-ul-Haq at the date of institution of the suit were not filed in ,the Court alongwith the plaint. Since no evidence of independent witnesses about their execution is forthcoming except the evidence of two sons of the plaintiff, therefore, it can safely be inferred and held that these power of attorneys were prepared later on in order to meet the objection which had been raised in the written statement by the appellant that the suit had not been duly presented/ instituted by an authorised person. I have examined the original register of stamp- vendor and entries against Serial Nos.201 and 202 dated 5-3-1964. It is clear therefrom and no doubt can be entertained in this respect that the original entries had been erased and instead fresh entries were made to show that the stamp papers were sold to Syed Muhammad Baqir. The appellant in support of his case examined Mr. MAA. Nomani as D.W.3 who is Handwriting Expert. In his report Exh.D.8 after examining the disputed entries against Serial Nos.201 and 202 and relevant document has recorded an opinion that these entries were substituted in. place of the original entries which had been erased. The finding of the learned trial Court that the power of attorneys Exhs.P.1 and P.2 were not in existence on the date of institution of suit and that they were prepared later on is fully supported by the evidence of unimpeachable nature produced by the present appellant which is supported by the fact as noted above that the only witnesses examined by the plaintiff in respect thereof were his two sons which evidence could be cooked up easily.
11. The learned lower appellate Court has not given any finding about this aspect of the case and did not examine the findings recorded by the learned trial Court and give his own finding after considering the evidence. The learned lower appellate Court proceeded on the assumption that it was simply a case of mere non-signing of the plaint and since non-signing of the plaint by the plaintiff has been consistently held to be a mere irregularity, therefore, the same could be rectified as such there was no defect in the institution of the suit on that account in particular when Syed Muhammad Baqir original plaintiff had appeared as P.W.1. I am afraid this approach in the facts and circumstances of this case was not justified by law. The cases of mere non-signing of a plaint which were held to be the case of mere irregularity were those where a power or authority in favour of a person who had signed the plaint had otherwise been conferred on him or was in existence at the relevant time but the same was not filed with the plaint and failure to put signatures on the plaint by such person was through inadvertence or mistake. In this case it was not a case of mere non-signing of plaint by an authorised agent but the question was whether Syed Zahoor-ul-Haq who posed himself as attorney of the plaintiff and had instituted the suit and signed the plaint as such was authorised to do so and if not as to whether the suit could be held to have been instituted by the plaintiff. Having held that the power of attorneys Exhs.P.1 and P.2 were not in existence on the date of institution of the suit and that they were fabricated later on by the plaintiff in collusion with his two sons in order to meet the objection which had been raised in the written statement regarding improper institution of the suit, as such, it was a case where the suit was not filed by the plaintiff or on his behalf by any authorised agent. Syed Zahoor-ul Haq was not an attorney or agent of the plaintiff on the date when he instituted the suit. In this view of the matter, the argument of the learned counsel for respondents Nos.1 to 9 is that Syed Muhammad Baqir when examined himself as his own witness as P.W.1 could be deemed to have rectified the act of Syed Zahoor-ul-Haq of the institution of suit which could be done under section 196 of the Contract Act, as such, the suit should be deemed to have been validly instituted. I am afraid in view of the above discussion the argument in my opinion is plainly unsound. The view taken by the learned trial Court which I hereby .uphold fmds support from judgment reported as Muhammad Riaz Khan v. Sardar Rahim Dad and 12 others (PLD 1960 SC (AJK) p.13). The present case as a matter of fact is a case of forgery and there was no question of its rectification. Apart from this Syed Baqir Ali who appeared 4 P.W.1 did not expressly state that he intended to rectify whatever had been done by Syed Zahoor-ul-Haq as his attorney but he insisted that the power of attorneys Exhs.P.1 and P.2 had been executed before the institution of the suit meaning thereby that he was supporting the signing of the plaint by Syed Zahoor-ul-Haq as his attorney. The said power of attorneys having been held to have been prepared subsequently, therefore, no support from his statement in order to argue that he rectified the act of the institution of the suit can be derived as argued by learned counsel for respondents Nos.1 to 9.
12. The findings of the learned lower appellate Court under Issues Nos.1 and 2 are not sustainable which are set aside and the findings of the learned trial Court under the said issues are upheld.
13. Coming to the crucial question as to whether Mst. Hamid-un-Nisa was the full owner of the land in dispute which he gifted to the appellant through gift-deeds Exhs.P.14 and P.15 it may be stated that it is common gound between the parties that the land in India was owned by Syed Muhammad Hanif deceased and Mst. Hamid-un-Nisa was his widow. There is alma no dispute between the parties that she as issueless widow was entitled to inherit 1/4th share in the properties left by Syed Muhammad-Hanif. In the suit the plaintiff claimed possession of 3/4th share of the land on the assumption that the land in dispute which is subject-matter of these two gift deeds was the land allotted to Mst. Hamid-un-Nisa in lieu of total land owned by Syed Muhammad Hanif in India. Since the plaintiff himself conceded in the suit that Mst. Hamid-un-Nisa was entitled to 1/4th share of the land left by Syed Muhammad Hanif it is clear that the case as was made out in the compromise filed before the Senior Sub-Judge, Ambala that according to the custom Mst.
Hamid-un-Nisa was not entitled to any share in the agricultural land was itself belied and not carried further.
14. The question which falls for consideration, therefore, is as to whether the land subject-matter of gift-deeds Exhs.P.14 and P.15 represents the total land owned by Syed Muhammad Hanif in India or it is the 1/4th of it which fell to the share of Mst. Hamid-un-Nisa. The reliance of the plaintiff was on Exh.P.3 which is a copy of statement made by him on 29-1-1943 in a suit filed by Mst. Hamid-un- Nisa against him regarding Rs.1,500 as dower amount. According to the plaintiff a decree was passed on the basis of this statement which was in the nature of compromise but the copy of the decree and 'the judgment of the Court based on this compromise has not been produced. Nothing turns on this as the factum of passing of such a compromise decree as alleged in the suit has otherwise been admitted by Mst. Hamid-un-Nisa in the two disputed gift-deeds Exhs.P.14 and P.15.
This admission, however, does not , in any way advance the case of the plaintiff as the plaintiff himself has conceded that Mst. Hamid-un-Nisa was owner of the land to the extent of 1/4th share as widow which in terms is contrary to the consent decree according to which she was not entitled to inherit any share in the agricultural land of her husband but was to get only life estate and lien of Rs.1,500 of her dower amount.
15. Exhs.D.2 to D.7 are the copies of fard haqiats in which the name of Mst. Hamid-un-Nisa widow of Syed Muhammad Hanif only has been recorded. Exh.D.2 is regarding the land in Mauza Sadhu whereas Exh.D:3 is regarding land in Mauza Saralu Wala, Exh.D.4 is in respect of land in Mauza Ratoi, Exh.D.S is regarding land in Mauza Nagla Jagir whereas Exh.D.6 is regarding land in Mauza Kahura and Exh.D.7 relates to land in Mauza Haveli. Exh.D.17 which is the copy of special Jamabandi received from India regarding entries in the record of rights for the year 1944-45 shows that the land stood in the name of Mst. Hamid-un-Nisa widow of Muhammad Hanif. Strangely no entries were made in the Revenue Record on the basis of compromise decree based on Exh.P.3 dated 29- 14943 passed by the Senior Sub-Judge Ambala. Surprisingly the plaintiff did not take any steps for getting the entries in the Revenue Record in India made in accordance with the said compromise.
There is no explanation as to why the plaintiff did not get the entries made in the Revenue Record regarding the said decree. Syed Muhammad Hanif admittedly died in the year 1938 and if Mst.
Hamid-un-Nisa had succeeded to the agricultural land as limited owner,. a mutation to that effect must have been sanctioned in the revenue record. None has been produced by the plaintiff in support of his case. The appellant when appeared as D.W.4 in answer to question put to him in cross-examination clarified this matter. He stated that the land gifted to him through both the impugned gift deeds was the land which represented 1/4th share which was inherited by Mst.
Hamid-un-Nisa. He further stated that the decree dated 29-1-1943 also covered the land of Muhammad Eianif situated in other villages. He further clarified that the total land of Muhammad Hanif which was subject-matter of this decree was situated in villages Sadhu, Sarawan, Ratoi, Nagla Jagir, Khuda, Naldir alias .Salim Pur, Sadiq Pur, Haveli and SumbaL He was specific that the land in dispute situated in Chung Pangran and Gaju Matta, District Lahore which she gifted in his favour was allotted to Mst. Hamid-un-Nisa in lieu of land situated in villages Sadhura, Sarawan, Ratoi, Nagla Jagir and Khuda in India. He further specifically stated that in .lieu of land of Syed Muhammad Hanif situated in villages other than those mentioned by him in India the land was allotted to the petitioner other villas s. He stated that Mst. Hamid-un-Nisa Was not limited owner of the land gifted to him whereas she was the full owner of it being land representing her 1/4th share in the land owned by Syed Muhammad Hanif.
16. The evidence of D.W.2 Muhammad Younas Patwari is to the same effect. He categorically stated that Mst. Hamid-un-Nisa did not file the claim in respect of the land held by her in India in the capacity of widow of Syed Muhammad Hanif but instead she filed the claim as full owner. No effort was made by the plaintiff to produce any evidence to prove that the land in dispute which was allotted to Mst. Hamid-un-Nisa was not representing her 1/4th share and that she had not been allotted land in lieu of land left by Syed Muhammad Hanif in India situated in villages other than those mentioned by .D.W.4. It can safely be inferred from evidence of D.W.4 that out of the total land owned by Syed Muhammad Hanif deceased in India in different villages mentioned by him, Mst. Hamid-un-Nisa was given land in villages Sadhu, Sarawan, Ratoi, Nagla Jagir and Khuda in lieu of her 1/4th share with regard to which she filed claim and was allotted land in dispute in villages Chung and Gaju Matta which has been gifted by her to him and regarding the land of Syed Muhammad Hanif situated in India in other villages the plaintiff got the land allotted in some other villages in Pakistan. It is also evident from the evidence of D.W.4 that no suggestion was made to him that the plaintiff was not allotted any land in lieu of land held by Muhammad Hanif in India in villages other than those mentioned by him. After considering the oral as well as documentary evidence I am fully convinced that Exhs.D.14 and D.15 through which the land was gifted to the appellant represented 1/4th share inherited by Mst. Hamid-un-Nisa of the total land owned by Syed Muhammad Hanif and was not the land which represented the entire land of Syed Muhammad Hanif left in India. Fard Haqiats Exhs.D.2 to D.6 relate to land situated in villages Sadhu, Saralu, Ratoi, Nagla Jagir and Kahura which fell to the share of Mst. Hamid-un-Nisa. It was not suggested or even pleaded that apart from these villages Muhammad Hanif deceased the original owner did not own any land in villages Naldir alias Salim Pur, Sadiq Pur, Haveli and Sambal as stated by D.W.4 which land was inherited by the plaintiff as his 3/4th share.
17. The failure of the plaintiff to produce any documentary evidence in the form of entries in the Revenue Record that Mst. Hamid-un-Nisa inherited any agricultural land as limited owner is sufficient to hold that the plaintiff miserably failed to prove the case as made out in the plaint.
18. Reverting to the recitals made in Exhs.D.14 and D.15 which have been construed as an admission made by Mst. Hamid-un-Nisa that she was owner to the extent of 1/4th share in the land gifted by her it may be observed that on examining Exhs.D.14 and D.15. I find that the findings of the learned lower appellate Court are based on misreading and misconstruction of these documents. The donor in order to show that she was owner of the land and entitled to dispose of the same by way of gift had referred to a decree passed by the Civil Judge at Ambala in which she was acknowledged to be the owner of 1/4th share in the residential properties left by Muhammad Hanif whereas her right to retain the possession of the property till her death had also been acknowledged. This admission that there was a decree passed by a learned Civil Judge at Ambala and the assumption that such decree was passed was no longer a determining factor so far as the rights of Mst. Hamid-un-Nisa to dispose of the land to the extent of her 1/4th share even in the agricultural land was concerned because as observed above the case of the plaintiff that according to the custom she was not entitled to inherit agricultural land at all was not being followed as it was conceded that she was owner of 1/4th share in the land of Muhammad Hanif because he died issueless which share is in accordance with the Muhammadan Law. In the operative part of these two documents it has been specifically stated that the land which she was gifting to the appellant represented her 1/4th share in the total land of Muhammad Hanif which she had got allotted in lieu of her claim regarding the said 1/4th share, therefore, the learned lower appellate Court was wrong in assuming that, it was admitted that the land in dispute which Mst.
Hamid-un-Nisa gifted to the appellant was allotted in lieu of the total land owned by Muhammad Hanif and did not represent her 1/4th share only which assumption as I have already observed is based on not only misreading but also non-consideration of the evidence of D.W.4 in which he has clarified that the land allotted to Mst. Hamid-un-Nisa in villages Chung and Gagu Matta which is subject-matter of both the gift deeds was the land allotted to her in lieu of her 1/4th share in the land left in India in specified villages out of the land owned by Muhammad Hanif whereas the land in other villages owned by him was taken by the plaintiff as his 3/4th share against which he got land allotted in other villages.
19. It may be mentioned that the plaintiff knowing full well that in the said gift-deeds Mst. Hamid- un-Nisa had specifically recited that the land which she was gifting was the land which fell to her share as her 1/4th share, has not taken any exception to that in the plaint and pleaded that no other land was ever allotted to him in lieu of land held by Muhammad Hanif in India in other villages as stated by D.W.4 in cross-examination to whom no suggestion was put that there was no other land allotted to the plaintiff in any other villages in Pakistan in lieu of land left by Muhammad Hanif in India. Even in the grounds of appeal filed before the learned lower appellate Court filed by the plaintiff no ground was taken to deny the assertion made by D.W.4 in his statement in answer to a question in cross-examination that the plaintiff had got allotment of land in some other villages in lieu of land of Muhammad Hanif in India situated in villages other than those mentioned by him. This shows that the plaintiff was as a matter of fact trying to grab the land even out of 1/4th share of the land in dispute which was owned by Mst. Hamid-un-Nisa by saying that the same was the land allotted to her in lieu of the total land owned by Muhammad Hanif deceased in India.
20. The upshot of the above discussion is that the judgment and decree passed by the learned lower appellate Court is not sustainable. This appeal is accepted. The impugned judgment and decree dated 30-10-1982 passed by the learned lower appellate Court is set aside and that of the learned trial Court restored. There will be no order as to costs.